Business law and ethics

¶ … liability on the part of the manufacturer. There is no evidence that the product failed to operate in the manner in which it was designed to do. The cause of the accident was purely the negligence of the two boys. The fact one of the boys failed to be wearing a helmet has no relevance on the issue of liability as to the manufacturer. The manufacturer fulfilled its duty by including the warnings relative to the use of the helmet. Other than some design or manufacturing failure that was a casual factor in the accident the manufacturer would have no liability.

As to the ethics of placing such a product in the market place, there is little argument that such product has an attractive nuisance element to it but the product is no more dangerous than any other motorized vehicle and when operated properly is relatively safe. Manufacturing such products demands the issuance of proper warnings as to its uses but in the instant case it appears that this was done.

The Supreme Court should rule that the case should be conducted in the State of Vermont but not in the federal courts. In order for the matter to be held in a federal court in Vermont there must be either subject matter jurisdiction or diversity and there is no indication that either exists in the instant case. The subject matter jurisdiction issue is easily disregarded absent a demonstration of federal question. As the matter at hand is likely a contract issue there is little likelihood of its involving an issue of any great federal significance.

The issue of diversity is more interesting. The defendant, McCain, is a resident of Arizona for purposes of litigation, however, the fact that he voluntarily consented to the jurisdiction of the Vermont courts for purposes of contract application and interpretation serves to obviate the diversity created by McCain's being an Arizona resident. McCain's argument for fairness is likely to be ignored due to McCain's contractual agreement to be bound by Vermont law.

3. The doctor's failure to appear provides the court with a variety of options. After determining whether service had been properly made upon the doctor the court and that the patient's attorneys properly requested sanctions, the court should schedule a hearing to afford defendant and his counsel full opportunity to be held on the merits of the plaintiff's request for sanctions. At this hearing the court should, at minimum, rule upon the sanctions requested by the plaintiff. Assuming that plaintiff's counsel would request the full range of sanctions the court should grant each of them including a default judgment but allow the defendant the opportunity to purge himself by attending the deposition. As to the first two missed depositions the court should award the plaintiff the costs associated with said proceeding including reasonable attorney fees. Absent a demonstration of just cause for failing to appear at the first two scheduled depositions these costs should not be purged. The court should also grant the plaintiff a default judgment but suspend said judgment for a period of time sufficient to allow the defendant to attend a deposition. The deposition should be scheduled at the convenience of the plaintiff and his counsel.

4. The case law and statutes recognizing the authority of arbitrators grant arbitrators immunity from being subpoenaed from all trial proceedings. This immunity developed out of the common law but has been codified in most jurisdictions. Courts also possess the right to award attorney fees and other costs against anyone who attempts to subpoena an arbitrator. This immunity extends to any civil liability that may extend to an arbitrator's participation in an arbitration proceeding.

5. The issue presented by the Atomic Mushrooms is a good one. Although the practice of requiring mushroom growers to contribute to the industry advertising is one based on sound governmental reasoning there is a compelling and equally sound reasoning based on Atomic Mushrooms First Amendment rights. As good as the forced advertising might be for the mushroom industry the question must be asked why such conditions are not placed on every industry. Atomic Mushroom has a potentially viable argument based upon its First Amendment rights and the fact that the circumstances under which the advertising requirements were originally required, that is, the state of the economy in general and the mushroom industry specifically no longer exist obviating the need for government protection. Atomic Mushroom should prevail.

6. The plaintiff would have available three possible causes of action related to the same set of facts: the taking of the keys. The first cause of action would be based in conversion. The problem in this approach would be the fact that the defendant's possession of the keys was only momentary and did not result in the plaintiff's suffering complete exclusion from her keys. The second course of action would be to proceed on the basis of intentional infliction of mental distress. Here the problem will be the plaintiff's ability to demonstrate that the defendant's behavior was "extreme and dangerous." As foolish and childish as the defendant's behavior may be whether such behavior raises to the level necessary for recovery for this tort under the law of most jurisdictions is questionable.

The third cause of action would be trespass to a chattel; the chattel being the plaintiff's keys. Here the plaintiff would only have to demonstrate that she was denied use of ther keys for a substantial time in order to prevail. Whether the half hour was a substantial time would be a jury question.

The damages portion of the plaintiff's claim is also highly questionable. Damages are an element of all tort claims and in many jurisdictions the awarding of punitive damages with the demonstration of actual damages is not permissible. There is nothing presented in the instant case to indicate how the plaintiff was injured other than her mere outrage. This may be enough in some jurisdictions as to the conversion and the intentional infliction torts but as to trespass action it would surely be enough as actual damages are not necessary.

The trespass action represents the best available cause of action for the plaintiff. As the question as to whether the trespass was for a substantial time is a question fact and therefore within the province of the jury the Court of Appeals is not likely to overturn the awarding of damages. Courts of Appeal are reluctant to overturn such determination absent compelling evidence to do so. If the Court of Appeals finds that the underlying basis for the tort has been demonstrated the punitive damages award is likely to stand.

7. The plaintiff's entire action will be dependent upon what the developer and real estate agent knew. An action in fraud is based upon a false or misleading allegation or the concealment of what should have been disclosed. Obviously if the plaintiffs can demonstrate that either the developer or real estate agent knew that the plaintiffs did not have access to Waterfall Road and knew that the plaintiffs were relying upon such access in making a decision to purchase the property then both would have had an obligation to advise the plaintiffs of this fact. The fact that neither the developer nor agent advised the plaintiffs of the lack of a Waterfall Road access would certainly constitute fraud if either or both were aware that the plaintiffs considered this to be a material fact in their decision.